ILNews

Bell/Gaerte: 3 things to know about ethical advocacy in closing argument

James J. Bell , K. Michael Gaerte
July 30, 2014
Keywords
Back to TopCommentsE-mailPrintBookmark and Share

Bell Gaerte 3 thingsRecently, several published decisions have found attorneys to have engaged in improper advocacy. Most of these decisions have been criminal cases in which prosecutors were found to have engaged in a series of impermissible arguments. In addition, there was one recent disciplinary decision that found an ethical violation when the attorney made unsupported statements in his closing argument. Here are three things to know about ethical advocacy in closing argument.

1. Rule of thumb: Stick to the record.

If you are in the heat of trial and can’t remember anything else from this article, just remember that if you only argue the facts that were entered into evidence, everything else should be smooth sailing. Rule 3.4(e) of the Indiana Rules of Professional Conduct states that “A lawyer shall not . . . in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.” Furthermore, in a criminal case, “the prosecutor is required to confine her closing argument to comments based upon the evidence presented in the record.” Brummett v. State, 10 N.E.3d 78, 9 (Ind. Ct. App. 2014). Stated in a slightly different way, “[i]t is misconduct for a prosecutor to request the jury to convict a defendant for any reason other than his guilt.” Ryan v. State, 9 N.E.3d 663, 16 (Ind. 2014).

Applying these standards to recent cases, the court has found the following to be improper:

• Characterizing defense counsel’s argument as “how guilty people walk” or a “trick.” Ryan, 9 N.E.3d at 10.

• Requesting that the jury convict the defendant as part of a “bigger picture” and to send a message that stops other perpetrators of sexual misconduct like teachers, coaches or pastors. Id. at16.

• Suggesting that the defendant and defense counsel conspired to fabricate its defense. Brummett, 10 N.E.3d at 11.

2. Improper advocacy can be deemed unethical.

In Matter of M.A., 2014 Ind. LEXIS 507(Ind. 2014), the respondent was found to have violated Rule 3.4(e) of the Indiana Rules of Professional Conduct when he “made a number of inappropriate remarks during closing argument, including telling the jury that this would be a ‘perfect case for punitive damages’” even though the claim for punitive damages had been withdrawn. Id. at 4. In addition, the respondent improperly alluded to “facts that were not supported by admissible evidence, assert[ed] personal knowledge of facts in issue, and stat[ed] his personal opinion as to the justness of his clients’ cause and the credibility of a witness.” Id. at 4-5. The respondent was found in violation of other Rules of Professional Conduct and was sanctioned with a 60-day suspension.

In addition, some of the criminal cases cited above analyzed the Rules of Professional Conduct in evaluating whether the lawyer’s advocacy had been appropriate. For example, in Ryan, the Court of Appeals, quoting the Preamble to the Indiana Rules of Professional Conduct, held that a prosecutor’s improper comments regarding defense counsel were “inconsistent with the requirement that lawyers ‘demonstrate respect for the legal system and for those who serve it, including . . . other lawyers.” See Preamble [5], Ind. Professional Conduct Rules; Ryan, 9 N.E.3d at 10. In addition, the prosecutor’s comment that the witnesses “do not lie about the Defendant,” constituted improper commentary on “the justness of a cause” and the “credibility of a witness” in violation of Rule 3.4(e). Brummett, 10 N.E.3d at 15.

3. Opposing counsel can help stop the improper advocacy.

Whether the attorney is in a criminal or a civil case, the attorney’s opposing counsel has a role to play in preventing misconduct. For example, opposing counsel should know that he or she can open the door to otherwise improper arguments. In Neville v. State, 976 N.E.2d 1252, 1259-60 (Ind. Ct. App. 2012), a prosecutor made a comment in voir dire that could have been interpreted to suggest that a good judge and good defense attorney meant that the jury should not be concerned about a wrongful conviction.

While the court seemed “troubled” by this comment, it also noted that “[p]rosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor’s response would otherwise be objectionable.” Id. at 1260 quoting Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). Because the prosecutor was responding to defense counsel’s questioning about wrongful convictions, the court deemed that the comments did not rise to the level of fundamental error. Id.

Finally, opposing counsel obviously needs to object to improper comments. While the conviction in Brummett was reversed, the conviction in Ryan was not. Both cases involved similar arguments from the prosecutor. However, because defense counsel did not object, the judge did not stop the improper arguments at either trial and the cases were analyzed under a fundamental error analysis. While it will never be known what would have happened had a timely objection been made, the chances of a fair trial would have increased.•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

ADVERTISEMENT